Factual Background Edit
Illinois enacted two statutes (the Illinois Violent Video Games Law (“VVGL”) and Sexually Explicit Video Games Law (“SEVGL”) that prohibited the sale or rental of “violent” videogames to minors, and required that violent games be labeled with a 2-inch by 2-inch white “18” outlined in black. The statute also prohibited the sale or rental of “sexually explicit” videogames to minors.
Trial Court Proceedings Edit
The Entertainment Software Association (ESA) and the Video Software Dealers Association (VSDA) filed suit claiming that the statute was unconstitutional. The statute was held to be unconstitutional by federal District Judge Matthew Kennelly, who permanently enjoined its enforcement on First Amendment grounds.
The court declined to apply the "Central Hudson" test for two reasons:
|“|| (1) the '18' sticker contained no factual information about game content, created 'the appearance that minors under eighteen are prohibited from playing such games,' and required a 'subjective evaluation [of content] left to the discretion of the retailer'; and
(2) with regard to all of the disclosure provisions, the state had offered no evidence of 'actual confusion or deception of parents or children about the ESRB rating system or the content of the games that would necessitate such measures.'
In dicta, the court stated, however, that even under the commercial speech standard, “these provisions would be unconstitutional because they are ‘unjustified or unduly burdensome requirements’ that ‘offend the First Amendment by chilling protected commercial speech.’” The court noted that the labeling provision would require retailers “to play thousands of hours of video games in order to determine whether they must be labeled” and that the signage provisions would require “all video game retailers — even those who do not sell violent or sexually explicit games — to post large signs in multiple places about the ESRB rating system.”
Appellate Court Proceedings Edit
Affirming the lower court decision with respect to the SEVGL, the appellate court stated that these disclosure requirements, involving “a subjective and highly controversial message,” were not comparable to constitutionally permissible forms of commercial speech regulation, such as nutrition information on food labels, health warnings on cigarettes, or disclosure that a product contains mercury.